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Indian Water Rights, Issue for the '80S National Indian Law Library NILL No. 010070 NARF Legal Review Indian Water Rights, Issue for the '80s Indian water rights w ill undoubtedly be the major Indian belieue that within a year (of establishing the reseruation) rights issue in the 1980s. Nearly every tribe in the western Congress destroyed the (water rights) and took from the United States if fighting to protect its water rights. either Indians the consideration of their grant (of aboriginal through litigation or negotiations. Even though it has been lands) leauing them a borren waste ... took fro m them legally established since 1908 that Indians have special the means of continuing their old habits. yet did not leaue reserved water rights. these rights are still continually being the m the powe r to change to new o nes ... ignored by state and private water users. with the consequences that tribal water resources are being With this decision. W inters u. United Sca tes. the U.S. threatened. are being illegally appropriated. or have already Supreme Court laid down a basic tenet of Indian law - that been completely diverted. T his will continue until triba l with the establishment of an Indian rese rvati on was an water claims are protected by litigation or negotiated implied reservation of su fficient water to enable the Indians se ttlements. to live on these lands which were drastically reduced in sizP Indian treaties which established reservations seldom from the aboriginal lands that they were ceding in treaties mentioned and never defined Indian water rights. However. with the United States. and to which they were being in writing for the U .S. Supreme Court in 1908 in a case in forcibly relocated . The Winters case . or Winte rs Doctrine. which non-Indian water users were asserting that the lay virtually dormant until 1963 when the Supreme Court establishment of the Ft. Belknap Indian reservation in once again addressed the issue of Indian water rights in Montana carried with it no special water rights for the tribe. Arizona u. California. Justice M cKenna stated: Arizona u. California was a suit to litigate th e waters of :he lower Colorado River among the states of A rizona. "The lands (of the reseruation) were arid. and without California. Nevada. the federal government and five sou th ­ irrigation. were practically ualueless. And yet. it is western tribes. In its decision. the Supreme Court not only contended (that) the m eans of irrigation were de libe rately reaffirmed the Winters Doctrine . but ruled that Indian giuen up by the Indians ... Did they re duce the area of reservations were entitled to sufficient wa ter to irrigate all their occupation and giue up the waters which made (the " practicably irrigable acreage" on reservations. The Arizona reseruation) ualuable or adequate? . That the decision caused an uproar among the western states and gouernment did reserue (water rights for the tribe) we land owners wbich continues today. T here is little surprise haue decided. and for a use that would be necessarily that the 1908 Winters decision ca used little notice for so continued through years . it would be extreme to long a time. Most western tribes. small in number and size . The Native American Rights Fund is a non-profit, Indian­ Contents controlled organization supported by private foundations and December 1981 Vol.7 (3,4) companies, federal agencies, Indian tribes, individual donors and other sources. NARF works exclusively for Indian rights Indian W ater Rights: Issue for the '80s ....................... 1 by providing legal representation in such major areas as tribal Case Developments ..................................................... 7 sovereignty and self-determination cases, tribal resources, and Staff Profile: Suzan Shown H arjo .. ... .. ......................... 9 the preservation of tribal existence and Native American cul­ N ew National Support Committee M embers ............... 10 tures. Requests for assistance should be directed to Jeanne Whiteing, Deputy Director. NARF requests expenses and at­ N ARF News .. ........................................ ........... ........... 12 torney fees from those clients with ability to pay. Second Annual Art Show .............. .............................. 14 Native American Rights Fund Corporate Officers Executive Director: John E. Echohawk (Pawnee) The Native American Rights Fund is a non-profit organization Deputy Director: Jeanne S. Whiteing (Blackfeet-Cahuilla) specializing in the protection of Indian rights. The priorities of Development Officer: Mary L. Hanewall NARF are: ( 1) the preservation of tribal existence; (2) the pro­ Treasurer: Susan Rosseter Hart tection of tribal natural resources: (3) the promotion of human Secretary: Oran G. LaPointe (Rosebud Sioux) rights: (4) the accountability of governments to Native Ameri­ cans: and (5) the development of Indian law. Staff Attorneys Lawrence A. Aschenbrenner* Steering Committee Kurt Blue Dog (Sisseton-Wahpeton Sioux) Richard B. Collins Executive Committee: Richard J. Dauphinais (Turtle Mountain Chi1-pewa) Leo LaClair (Muckleshoot). Chairman . Washington Walter R Echo-Hawk (Pawnee) Bernard Kayate (Laguna Pueblo), Vice-Chairman .. New Mexico Douglas Endreson (Navajo) Robert Bojorcas (Klamath) . Oregon Yvonne T. Knight (Ponca-Creek) John Stevens (Passamaquoddy) . Maine Arlinda F. Locklear (Lumbee) Don B. Miller Other Members: Robert S. Pelcyger Curtis Custalow, Sr. (Mattaponi) . Virginia Anita M. Remerowski ReNee Howell (Oglala Sioux) .............. South Dakota Terry L. Pechota (Rosebud Sioux) Roger Jim (Yakima) ..... ............ Washington Jeanne S. Whiteing (Blackfeet-Cahuilla) Louis LaRose (Winnebago) . Nebraska Patrick Lefthand (Kootenai) . Montana Of Counsel Chris McNeil, Jr. (Tlingit) . Alaska Leonard Norris, Jr. (Klamath) ... .. ..... .... Oregon Bruce R Greene, T homas N. Tureen, Charles F. Wilkinson Harvey Paymella (Hopi-Tewa) ........... Arizona Lois J. Risling (Hoopa) . California Legislative Liaison Suzan Shown Harjo (Cheyenne-Creek)* National Support Committee National Indian Law Library Owanah Anderson (Choctaw) Diana Lim Garry (Acoma Pueblo) ......... .. ... Librarian Iron Eyes Cody (C herokee-Cree) Bryce Wildcat (Pawnee-Euchee) ... .. .. Research Assistant Val Cordova (Taos Pueblo) Joyce Gates (Seneca) . Secretary Katrina McCormick Barnes Mary Mousseau (Santee Sioux) . Librarian Assistant Will H . Hays. Jr. Alvin M . Josephy. Jr. Indian Law Support Center David Risling. Jr. (Hoopa) Anita Remerowski ... .... Director Will Sampson. Jr (Creek) Gloria Cuny (Oglala Sioux) . Administrative Assistant Maria Tallchief (Osage) Tenaya Torres (Chiricahua Apache) Head Bookkeeper: Marian Heymsfield Ruth Thompson Office Manager: Rebecca S. Martinez Dennis Weaver Support Staff Rose Brave (Oglala Sioux) . Legal Secretary Rosetta Brewer (Cheyenne River Sioux) ...... Receptionist Mary Bumbera * . Legal Secretary Linda Caso . Legal Secretary Debra Echo-Hawk (Pawnee) .. .. .. .. .... NILL Assistant Sue Feller . Bookkeeper Sara Hobson (Navajo) . Legal Secretary ANNOUNCEMENTS is published by the Native American Rights Fund. All rights Jeff Lorencen . Printer reserved. Third class postage paid at Boulder. Colorado. Oran LaPointe. Editor. Please see enclosed coupon and item on " NARF Publications" in this newsletter Marilyn Pourier (Oglala Sioux) . Legal Secretary for subscription information. Mary Lu Prosser (Cheyenne River Sioux) ....... Secretary Rena Tardugno* _. .............. Legal Secretary TAX STATUS. The Native American Rights Fund is a non-profit. charitable or­ Pat Tate (Santo Domingo Pueblo) .. ......... File Clerk ganization incorporated in 197 J under the laws of the District of Columbia. NARF is exempt from federal income tax under the provisions of Section 501 (c) (3) of Susan Yuk-Yin Tuttle . ...... .. .. .. Bookkeeper the Internal Revenue Code. and contributions to NARF are tax-deductible. The In· Steve Wheelock (Delaware) . NILL Assistant ternal Revenue Service has ruled that NARF is not a "private foundation" as de­ fined in Section 509(a) of the Internal Revenue Code. Law Clerks & Interns MAIN OFFICE: Executive Director. Native American Rights Fund. 1506 Broad­ Maggie Fox . ... .. ... Legal Intern way. Boulder. Colorado 80302 (303-447-8760). D.C. Office: Directing Attorney. Lynn Hayes * . .. ..... Law Clerk Native American Rights Fund. 1712 N Street. N.W .. Washington. D.C. 20036 Jean Pfleiderer ..... ... ..... .. ... ... Law Clerk (202-785-4166) Founded in 1970 and Incorporated in Washington. D. C. •Washington. D.C. office staff members 2 Native American Rights Fund were not using all the water that ran through their decimated because of upstream diversions. principally the reservations, and non-Indians did not hesitate to Truckee- Carson Irrigation District. a federal reclamation appropriate Indian water w henever they wanted: especially projec t. These diversions have caused a decline in the Lake since the federal government was doing very little to protect level of 70 feet. and cu t off the fis hes· access to their T ruckee them. River spawning, grounds. The cui-ui. w hich is found onlv in Other court rulings have since further defined the nature Pyramid Lake. is classified as an endangered species. while of Indian reserved rights. Indian water rights are property the Lahontan cutthroat trout. the largest trout in the world rights based on federal law, and are not dependent on state which grew to more than 60 pounds in the rich waters of law nor on the riparian or approriative doctrines used in Pyramid Lake. is
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